Thursday, July 12, 2012

Important copyright decision just released

(Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC
37 was just released. Basically the Court holds that a teacher copying for students is not thereby excluded from the ambit of research or private study. A summary follows:
Access Copyright represents authors and publishers of
printed literary and artistic works. It filed a proposed tariff with the
Copyright Board with respect to the reproduction of its repertoire for use in
elementary and secondary schools in all the provinces and territories other
than Quebec.
The Copyright Board concluded that copies made at the teachers’ initiative with
instructions to students that they read the material were made for the
allowable purpose of “research or private study” under s. 29 of the Copyright
Act. They did not, however, constitute fair dealing and were therefore subject
to a royalty. On judicial review, the Federal Court of Appeal upheld the
Copyright Board’s conclusion that the copies were not fair dealing.

Held
(Deschamps, Fish, Rothstein and Cromwell JJ. dissenting): The appeal should be allowed and the matter
remitted to the Board for reconsideration.

Per McLachlin C.J. and LeBel, Abella, Moldaver and Karakatsanis
JJ.: Fair dealing allows users to engage
in activities that might otherwise amount to copyright infringement. The test for fair dealing was articulated in
CCH Canadian Ltd. v. Law Society of Upper Canada as involving two steps. The first is to determine whether the dealing
is for the allowable purpose of “research or private study” under s. 29,
“criticism or review” under s. 29.1, or “news reporting” under s. 29.2 of the
Copyright Act. The second step assesses
whether the dealing is “fair”.

There is no dispute that the first step of the test set out in CCH was
met and that the dealing — photocopying — was for the allowable purpose of
research or private study. The dispute
in this case centres on the second step of the test, namely, whether the copies
were “fair” according to the factors set out in CCH: the purpose, character, and amount of the
dealing; the existence of any alternatives to the dealing; the nature of the
work; and the effect of the dealing on the work.

The Board concluded that the predominant purpose was that of the teacher
as the copier. This meant that the
purpose was instruction, not research or private study. When considering the first stage of CCH —
whether the dealing is for an allowable purpose — the relevant perspective is
that of the user. This does not mean,
however, that the copier’s purpose is irrelevant at the second stage. The copier’s purpose will be relevant to the
fairness analysis if the copier hides behind the shield of the user’s allowable
purpose in order to engage in a separate purpose — such as a commercial one —
that can make the dealing unfair. There
is no separate purpose on the part of the teachers in this case. They have no ulterior or commercial motive
when providing copies to students. They
are there to facilitate the students’ research and private study and to enable
the students to have the material they need for the purpose of studying. The teacher/copier shares a symbiotic purpose
with the student/user who is engaging in research or private study. The Copyright Board’s approach drives an
artificial wedge into these unified purposes of instruction and
research/private study by drawing a distinction between copies made by the
teacher at the request of a student and copies made by the teacher without a
prior request from a student. The word
“private” in “private study”

should not be understood as requiring users to view
copyrighted works in isolation.

The Copyright Board’s approach to the “amount of the dealing” factor was
also flawed. Having found that teachers
only copied short excerpts of each textbook, the Board was required to
determine whether the proportion of each of the short excerpts in relation to
the whole work was fair. This factor is
not a quantitative assessment based on aggregate use, but an examination of the
proportion between the excerpted copy and the entire work.

With respect to the “alternatives to the dealing” factor, contrary to
the Copyright Board’s conclusion, buying books for every student is not a
realistic alternative to teachers copying short excerpts to supplement student
textbooks. Purchasing a greater number
of original textbooks to distribute to students is unreasonable in light of the
Board’s finding that teachers only photocopy short excerpts to complement
existing textbooks.

As
for the “effect of the dealing on the work” factor, there was no evidence of a
link between photocopying short excerpts and a decline in textbook sales. There were several factors, in fact, other
than photocopying, that were more likely to have contributed to any such
decline. Moreover, the Board’s finding
that the teachers’ copying was limited to short excerpts of complementary
texts, makes it difficult to see how the teachers’ copying competes with the
market for textbooks.

The Copyright Board’s decision
as to whether the photocopies amount to fair dealing is to be reviewed on a
reasonableness standard. Because its
finding of unfairness was based on a misapplication of the CCH factors, its
outcome was unreasonable.

Per Deschamps, Fish, Rothstein and Cromwell JJ. (dissenting): Whether a dealing is fair is a question of
fact. The CCH factors help assess
whether a dealing is fair but they are not statutory requirements. The Copyright Board’s application of these
factors to the facts of a case should be treated with deference and a
reasonableness standard should be applied on judicial review. In this case, the Board made no reviewable
error in principle.

It
was neither artificial nor unreasonable to conclude that the photocopies mainly
serve the teacher’s purpose of teaching and that this was the relevant and
predominant purpose of the dealing. The
Board did not draw an artificial distinction between copies made at the request
of a student and at the teacher’s own initiative. The Board did not err by equating
“instruction” with “non private study”.
The word “private” in s. 29 of
the Copyright Act cannot be stripped of meaning. A copy made on a teacher’s own initiative may
be for private study if, for example, the material is tailored to the
particular learning needs or interests of a single or small number of students
but “private study” cannot include large quantities of copies made as part of
an organized program of instruction.

It is important not
to look to the same aspect of the dealing under more than one CCH factor. The Board’s analysis of the amount of the
dealing remained focused on the overall proportion of the copied pages of a
work in relation to the entire work over a period of time. Its analysis of the character of the dealing
focused on the fact that multiple copies of the same excerpt are made, at any
one time, to be disseminated to a whole class.
There is no basis to disturb the Board’s assessments of these factors.

The Board’s analysis
of alternatives to the dealing was not unreasonable. Furthermore, in a case where numerous short
excerpts of the work are taken, the fact that there are no non copyrighted
alternatives will not automatically render a dealing fair. The Board’s conclusion that the dealing
competes with the original work to an extent that makes the dealing unfair is
unsupported by evidence and unreasonable.
However, no one CCH factor is determinative and the Board considered the
purpose of the dealing and the amount of the dealing to be the most important
factors, therefore this error is not sufficient to render the Board’s decision
unreasonable. The Board’s decision was
intelligible, transparent and justifiable and cannot be said to fall outside of
a reasonable range of outcomes.

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